U.S. v. Lott

• Citation: 310 F.3d 1231
• Decision Date: 05 November 2002
• Docket Number: No. 00-6141.<SMALL><SUP>*</SUP></SMALL>,No. 00-6200.,00-6141.<SMALL><SUP>*</SUP></SMALL>,00-6200.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Allen LOTT, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Johnny Marton Lott, aka Johnny Martin Lott, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

310 F.3d 1231

UNITED STATES of America, Plaintiff-Appellee, v. Gary Allen LOTT, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Johnny Marton Lott, aka Johnny Martin Lott, Defendant-Appellant.

No. 00-6141.^*

No. 00-6200.

United States Court of Appeals, Tenth Circuit.

Filed November 5, 2002.

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J. David Ogle, Martin Law Office, Oklahoma City, Oklahoma, for Defendant-Appellant Gary Allen Lott.

Daniel G. Webber, Jr., United States Attorney, and Frank Michael Ringer, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant Johnny Lott.

Frank Michael Ringer, Assistant United States Attorney (Daniel G. Webber, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

ORDER

This matter is before the court on appellant's petition for rehearing in 00-6200 filed on August 23, 2002. The petition for rehearing is granted. Therefore, the court's opinion in 00-6141 and 00-6200, filed July 30, 2002, is vacated and a revised opinion addressing the changes in Sections VI and VII is attached. The mandate issued in case 00-6141 is recalled. The District Court Clerk shall return the recalled mandate forthwith.

Gary Lott and Johnny Lott were indicted¹ and convicted by a jury of various counts in connection with a conspiracy to manufacture and distribute of methamphetamine. These co-defendants at trial now bring separate appeals alleging various errors by the district court, which we address in this single opinion. Specifically, they both claim that their sentences run afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Gary Lott also contests the district court's failure to suppress the testimony of certain government witnesses and its denial of his motion for a judgment of acquittal on a firearm possession charge. Johnny Lott challenges the district court's admission of exhibits that he claims are hearsay and its failure to hold a hearing on his motion for substitute counsel. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court in all regards except for the district court's ruling denying Johnny Lott an evidentiary hearing on his claim of a total breakdown of communications with his counsel. As to that claim, we REVERSE and REMAND.

I. Background

This conspiracy case involves a methamphetamine manufacturing and distribution operation operated out of three residences in the Oklahoma City area: 2418 Southwest 24th Street, 4725 South Triple X Road, and 201 Hawk Drive. Johnny Lott allegedly used the residence of Jeff Wright, the 24th Street house, in connection with his distribution of methamphetamine. In October and November of 1998, an Oklahoma City Police Department (OCPD) paid informant, Judy Jackson, made controlled buys from Johnny Lott, which an OCPD officer observed in an undercover capacity. David Arnold also obtained methamphetamine from Johnny Lott. At trial, Judy Jackson, Jeff Wright, and David Arnold all testified about the defendants' activities in connection with the methamphetamine manufacturing and distribution operation. Both Judy Jackson and Jeff Wright entered into plea agreements with the government in which they were promised leniency for their testimony in this case. Ms. Jackson also received $3,450 from the FBI for her cooperation in the case.

On January 9, 1999, a search of the Triple X Road and Hawk Drive residences revealed clandestine methamphetamine labs. A United States Postal Service form for the address of 201 Hawk Drive also was found in a bedroom at the Hawk Drive residence. The form, entitled "Rural Customer Delivery Instructions," contained an instruction to "enter names of people who may receive mail at your address." The names Johnny Lott, David Lott, and Greg Lott were hand-written on the form. At trial, the government sought to introduce the form as Exhibit 68. It also presented evidence at trial connecting Gary Lott to both of these properties, including several utility bills in his name and a rental agreement for the Triple X Road property.

On January 21, 1999, OCPD Officer Danny Fitzwilliam recognized a yellow wrecker, which he associated with the January 9th search of the Triple X Road and Hawk Drive residences, pulling out of the parking lot of the Chieftan Motel. The officer pulled into the parking lot and observed Gary Lott walking from the motel to a red Camaro parked in front of the room. He then saw Gary get "in the driver's side door and lean[] over the driver's seat inside the vehicle." The officer observed Gary Lott look up, get out of the car, close the door, and begin walking away from the Camaro and the hotel room. The officer proceeded to arrest Gary Lott and entered the room that he believed Gary Lott had been exiting. In the room he observed an older revolver and a police scanner, and he noticed a strong smell associated with meth labs. He encountered Nicole Hatcher, Gary Lott's girlfriend, at the doorway, and they spoke outside by the Camaro. The officer then looked down and observed a nine-millimeter Sig-Sauer sitting on the driver's seat of the Camaro that Gary Lott had previously exited. He confiscated the gun and found various chemicals involved in the manufacturing of methamphetamine inside the Camaro, as well as a heating element, various glassware, tubing, and rubber stoppers.² The officer also found in the back of the Camaro an unlocked safe and a telephone bill in Gary Lott's name.

A search of the motel room also revealed evidence of materials associated with methamphetamine manufacturing, including coffee filters, used tubing, plastic baggies, and white powder residue. In addition to these materials, the police found a vehicle registration receipt indicating that a pickup truck was registered to "Gary and/or John Lott" at the Triple X Road address. The government sought to enter this receipt at trial as Exhibit 21.

On February 17, 1999, a federal grand jury delivered a multi-count indictment, charging Gary Lott on the following counts: Count 1 alleged that the co-defendants conspired to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), incorporating by reference counts 2-12, resulting in a total of 127.8 grams of mixture of methamphetamine. Counts 6, 7, and 8 charged Gary Lott with maintaining a residence for the purpose of manufacturing methamphetamine in violation of 21 U.S.C. § 856(a)(1). Count 10 charged him with possession of listed chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). Count 11 charged him with attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846, but that count did not state a quantity. Finally, Count 12 charged him with knowingly carrying and possessing a firearm, the 9 mm Sig-Sauer found in the Camaro, during and in relation to and in furtherance of the drug trafficking offense of attempting to manufacture methamphetamine, in violation of 18 U.S.C. § 924(c)(1). After a four day trial, ending on July 30 1999, the jury found Gary Lott guilty on all counts. As with most pre-Apprendi cases, the jury was instructed that it did not have to find drug quantity beyond a reasonable doubt.

Gary Lott filed objections to the Presentence Report (PSR), claiming that it failed "to define or articulate with specificity the source of the information regarding the drug quantities and purity relied upon in making the drug quantity determination." On April 7, 2000, the district court adopted the PSR's recommended terms of imprisonment and sentenced Gary Lott to life terms for Counts 1 and 11, to run concurrently; 240 months on each of Counts 6, 7, 8, and 10, also to run concurrently to his life sentence; and 60 months on Count 12, which was not to run concurrently with any other term of imprisonment.

The grand jury also indicted Johnny Lott on Count 1 (conspiracy), and Counts 2, 3, and 4 charged him with distributing the following amounts of a mixture or substance containing methamphetamine: 28.3 grams (Count 2), 29.6 grams (Count 3), and 55.8 grams (Count 4), all in violation of 21 U.S.C. § 841(a)(1). Count 9 alleged that Johnny Lott maintained the 24th Street premises for the purpose of distributing a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 856(a)(1). The jury, which also was instructed that it did not have to find drug quantity beyond a reasonable doubt, found him guilty of all counts charged.

Johnny Lott also filed objections to the PSR, contesting the accuracy of the report's methamphetamine calculation and claiming that the government had failed to show by a preponderance of the evidence the drug quantities attributed to him. On June 13, 2000, the district court reduced the offense level stated in the PSR by two levels and sentenced Johnny Lott to thirty year sentences on each of Counts 1, 2, 3, and 4, and to a twenty year sentence on Count 9. All of his sentences were to run concurrently with each other.

After conviction but prior to his sentencing, Johnny Lott filed a total of five pro se motions with the district court between October 1999 and March 2000, claiming, in large part, that he was dissatisfied with his counsel's representation of him at trial. In his second and third motions, Johnny Lott alleged communication problems with his attorney, stating that his counsel "failed to communicate or interview defendant either before or after trial," that "defendant has written to counsel to no avail," and that Johnny Lott had not "been able to establish any sort of contact" with his attorney. (Id.) Lott asked the court for "remedy and protection." The...